Lawyer wants “Goliath verdict” against RIAA in abuse trial

A single mom in Oregon sued the recording industry in 2007 over its legal …

While the RIAA has stopped its mass litigation campaign against file-swappers, cases in progress persist. Tanya Andersen's is one of the oddest and most intriguing, and it's set to proceed to trial against the RIAA next year on charges of "abuse of the judicial process."

When the record labels sued single mom Tanya Andersen of Oregon back in 2005, they got more than they bargained for. Not only did Andersen file counterclaims against the RIAA and its investigators, but she successfully got the case dismissed and even won $107,834 in attorneys' fees. Then, in 2007, she filed a separate suit against the record industry, charging it with a huge list of accusations:

Or, to sum it up another way: the RIAA and its investigator MediaSentry were called malicious privacy-invading gangsters who indulged a taste for computer fraud as they deceived the public, misused US law for their own twisted ends, and who purposely went after (and then slandered) a psychologically fragile woman.

The case is still in progress, but in the last three years, federal Judge Anna Brown has cut down those claims one by one and dismissed several of the defendants. One of the last remaining claims in the lawsuit was "negligence" for "prosecuting baseless sham litigation" against Andersen, and Judge Brown finally ruled on it yesterday.

Oregon courts only allow "emotional distress caused by negligence" claims if the emotional distress was the result of some physical injury. Thus, if a business negligently allowed ice to form on its front steps and you fell, you could sue for emotional distress. But if you simply felt terror at contemplating those slippery steps and got back in your car and went home... no cash.

In this case, "the evidence indicates that Andersen suffered emotional distress that increased and exacerbated her physical suffering" but she couldn't prove "any kind of physical impact that caused her to suffer emotional distress as required."

Negligence charge dismissed. In the eyes of the law, the RIAA is not the libeling fraudster mob boss of Andersen's claims, and Andersen is not allowed to launch a class-action lawsuit against the record labels. But she'll still get her day in court on the one remaining charge.

"I stab people"

The case has clearly been emotional for Andersen, and the language of her initial complaint was uncompromising. The RIAA "publicly libeled" Andersen by saying that she had downloaded and shared songs "with titles such as 'die motherf---er die,', 'bullet in the head,' f--- y'all hoes,' 'n----- f---er,' and 'i stab people.'" In reality, Andersen "listens to only country music and soft rock" and has "avidly purchased music from RIAA member companies' mail-order CD clubs." Her child, a young girl, presumably had no such tastes in music, either.

What really made it worse, in Andersen's mind, was that she believed she had actually found the culprit. The RIAA was going after a KaZaA user called "gotenkito," a name Andersen says she had never heard. So she went online and used the Power of Google.

"In fact, a simple 2-minute search for 'gotenkito' on the Google search engine confirms that a young man in Everett, Washington had been using the Internet name gotenkito" (it appeared on his MySpace page). And the man in question admitted on the site to downloading music from the Internet. Boom!?

Andersen told the RIAA about this, and they duly deposed the man. He claimed innocence as well; the lawyers apparently took his word, relying instead on Verizon's repeated assurance that its IP address lookup fingering Andersen's home address was correct. In addition, Andersen at some point in the case confirmed that KaZaA Lite was installed on her computer (she said a friend had installed it; the friend, when deposed, said she knew nothing about it), though there's no evidence it was ever used, and an investigation of Andersen's computer turned up nothing incriminating.

(Update: Lybeck tells us that "gotenkito" was never actually deposed by the recording industry, merely interviewed over the phone. According to a recording industry statement of facts in the case, label lawyers "investigated Mr. [redacted]. They interviewed him. He denied having used KaZaA to download any sound recordings." But the investigation, apparently, did not go much beyond this because it was Andersen's home that "Verizon repeatedly identified as the location of the relevant IP address.")

But the episode set up Andersen to believe that she was being targeted by the RIAA even when it knew she was innocent, something vehemently denied by the labels. In fact, they point out in one filing that those who have denied sharing files often did so. "Numerous people initially denied having used peer-to-peer software to upload and download copyrighted songs, but later recanted and admitted that they had, in fact, done so. Indeed, in one of the two enforcement program cases that have gone to trial so far, the defendant [Joel Tenenbaum] had denied infringement for years, and then admitted on the witness stand that his former denials, including statements made under oath, were false."

Whatever actually happened back in 2004 on KaZaA, the effects on Andersen have been profound. There have been the years of litigation, for one thing, but the case has also had serious lifestyle effects. Andersen took disability from the Department of Justice in 2004 for "painful physical illness, emotional and psychological problems." She hoped to return to work, but "her psychological and physical symptoms seriously worsened due to Defendants' malicious and outrageous conduct." She submitted a recent (and sealed) medical report to the court outlining these symptoms, which include severe headaches.

Last chance

Lory Lybeck

Andersen has one chance left to succeed in court. The judge will still allow her claim for "abuse of legal process," but it can only be applied to the RIAA's actions in their own litigation against her (a broader class-action suit looking at their entire campaign is off the table). The case will go to trial, though no date has yet been set. Given the number of charges and defendants dismissed so far, this might sound like a case destined to go nowhere, but Andersen's lawyer remains confident.

Lory Lybeck helped Andersen win the dismissal of the charges against her, and then the cash from the RIAA, and he's energized by the prospect of putting the industry on trial. Lybeck told Ars today that the $107,834 was merely compensation for legal fees (he has worked for Andersen on a contingency basis), and that the new trial will be about securing a "Goliath verdict with punitive damages" against the labels.

There was "no reasonable explanation for why they continued to prosecute her," he says. It was "some pretty abusive conduct."

In Lybeck's view, the RIAA was fully aware that "there was a known and significant error rate" in the way it discovered IP addresses and turned them into addresses, but recognizing that error rate would have undermined the national litigation campaign. So, in Lybeck's view, the RIAA put itself in a position where it simply couldn't let the case go even when it was clear that a mistake had been made.

He points out that Andersen was not a typical defendant. She immediately called the RIAA's settlement center, offering to let them search her machine. She petitioned every member of the Congress and Senate from Oregon to help her. She lived with a young girl and yet was accused of sharing some fairly profane music. She had complained to Verizon about interruptions in her Internet service in the weeks before the alleged infringement. And she went online and found someone living in the same part of the country who used the same ISP, used the word "gotenkito," and talked about downloading music.

Andersen "took great offense to all the accusations," he says. "She was seriously harmed." And Lybeck plans to secure compensation for the years of effort Andersen has expended fighting the case.

The amazing thing is that the RIAA never really had much evidence on anyone. Nothing that would really stand up in court, imo. Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim? And sharing--wouldn't they have to prove they were actually shared from the defendent's computer and not just merely available for download? And then on top of that--wouldn't they also have to prove that the people that had downloaded the songs didn't actually have a CD of the music and therefore there was no infringement? Seems like the burden of proof wasn't met.

It's a shame that the kind of cases the RIAA/MPAA brings against people aren't criminal in nature, as then they as the accuser would have to provide the proof 'beyond any reasonable doubt'. Sadly no such requirement exists with civil cases as with this copyright infringement case, which then leads to tragedies like this one.

Sad that so many of the charges were dismissed. The RIAA's behavior has been way over the line, but the so-called legal system just hasn't got the balls to stop it. Let's hope that at least this one remaining charge gets a huge award - something on the order of the millions the J-R trial has generated sounds appropriate.

I hope she wins and gets a good settlement. Something like a billion dollars would about cover putting them out of business. Naturally they'll appeal the settlement until the end and she'll probably only get a few million but the RIAA would be shut down and it's terror tactics stopped for good.

The amazing thing is that the RIAA never really had much evidence on anyone. Nothing that would really stand up in court, imo. Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim? And sharing--wouldn't they have to prove they were actually shared from the defendent's computer and not just merely available for download? And then on top of that--wouldn't they also have to prove that the people that had downloaded the songs didn't actually have a CD of the music and therefore there was no infringement? Seems like the burden of proof wasn't met.

Since the charge is distribution, having the CD would not help you at all (no one has yet been sued for just downloading something IIRC) since having the CD has nothing to do with distribution rights. As far as proof of distribution, I think what they have is weak, but the courts aren't technical enough to properly make that distinction and often accept sub-par IP based evidence.

Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim?

I can't believe people still don't understand this. You're not getting in trouble for download it. That's a legal grey area you could get away with, as long as you're downloading is for noncommercial purpose.

Everyone that the RIAA has hit has legally speaking gotten in trouble for making available. i.e. sharing the copyrighted material themselves. It doesn't matter if you own it or not when you share it in a manner that violated copyright.

(note, not supporting the RIAA or their claims, just letting you know why it doesn't matter if you own a CD)

Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim?

I can't believe people still don't understand this. You're not getting in trouble for download it. That's a legal grey area you could get away with, as long as you're downloading is for noncommercial purpose.

Everyone that the RIAA has hit has legally speaking gotten in trouble for making available. i.e. sharing the copyrighted material themselves. It doesn't matter if you own it or not when you share it in a manner that violated copyright.

(note, not supporting the RIAA or their claims, just letting you know why it doesn't matter if you own a CD)

We're not missing the point! We really do get it. We just don't agree with the fine applied by the law! Kay, now, bai!!!

Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim?

I can't believe people still don't understand this. You're not getting in trouble for download it. That's a legal grey area you could get away with, as long as you're downloading is for noncommercial purpose.

Everyone that the RIAA has hit has legally speaking gotten in trouble for making available. i.e. sharing the copyrighted material themselves. It doesn't matter if you own it or not when you share it in a manner that violated copyright.

(note, not supporting the RIAA or their claims, just letting you know why it doesn't matter if you own a CD)

It has so far twice been ruled that "making available" does not equal "distribution".

I think the awarding of attorneys fees (already done) is sufficient here. This is just greed on the part of Anderson and her lawyer.

I have to wonder how it all went down with the person she accused.. It seems reasonable to think that he was responsible, and an investigation of Andersons computer should have turned up evidence of hacking.. I wonder why the RIAA didn't pursue this further.

Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim?

I can't believe people still don't understand this. You're not getting in trouble for download it. That's a legal grey area you could get away with, as long as you're downloading is for noncommercial purpose.

Everyone that the RIAA has hit has legally speaking gotten in trouble for making available. i.e. sharing the copyrighted material themselves. It doesn't matter if you own it or not when you share it in a manner that violated copyright.

(note, not supporting the RIAA or their claims, just letting you know why it doesn't matter if you own a CD)

It has so far twice been ruled that "making available" does not equal "distribution".

Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim?

I can't believe people still don't understand this. You're not getting in trouble for download it. That's a legal grey area you could get away with, as long as you're downloading is for noncommercial purpose.

Everyone that the RIAA has hit has legally speaking gotten in trouble for making available. i.e. sharing the copyrighted material themselves. It doesn't matter if you own it or not when you share it in a manner that violated copyright.

(note, not supporting the RIAA or their claims, just letting you know why it doesn't matter if you own a CD)

Yeah that's what I thought too; just downloading is not what they're going after. But I've always wondered whether using torrents counts as sharing ("making available")? Since you're continually seeding while downloading I would think so..

Why can't someone sued by the RIAA not just hire a regular, sane lawyer? Why are they always nutbars? It was plain from the start that 99% of those allegations weren't going to stick. She'd have been much better off filing a rational lawsuit (which I think she should win) than loading up the insano-wagon with all that extra stuff.

Why can't someone sued by the RIAA not just hire a regular, sane lawyer? Why are they always nutbars? It was plain from the start that 99% of those allegations weren't going to stick. She'd have been much better off filing a rational lawsuit (which I think she should win) than loading up the insano-wagon with all that extra stuff.

I think the awarding of attorneys fees (already done) is sufficient here. This is just greed on the part of Anderson and her lawyer.

I have to wonder how it all went down with the person she accused.. It seems reasonable to think that he was responsible, and an investigation of Andersons computer should have turned up evidence of hacking.. I wonder why the RIAA didn't pursue this further.

Becuase they aren't truly interested in finding the guilty people, only people of whom they can make an example.

Although I suspect Anderson is psychologically and emotionally disabled like a fox, I'm still rooting for her.

By all accounts, the behavior of the RIAA in this case was reported to be among its most slimy, including trying to contact her young child unsupervised at school, etc. Things that would worry almost anyone targeted by it, but seems to me to be especially offensive and worrying to a single mom.

Personally, having seen a family member have panic attacks and depression about the mere possibility of a lawsuit related to a public protest/demonstration she participated in (but was not directly involved in the behavior the party being protested against claimed to be slander, and claimed in the paper to want to sue over) and would have been extremely unlikely to even have been identified, I am less skeptical about Anderson's reported problems as being real. She had to live through the proceedings, not just the vague threat of it.

But like you, I would be rooting for her regardless, not the least because of the RIAA's slimy behavior.

The amazing thing is that the RIAA never really had much evidence on anyone. Nothing that would really stand up in court, imo. Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim? And sharing--wouldn't they have to prove they were actually shared from the defendent's computer and not just merely available for download? And then on top of that--wouldn't they also have to prove that the people that had downloaded the songs didn't actually have a CD of the music and therefore there was no infringement? Seems like the burden of proof wasn't met.

- I believe owning the music would have covered her for downloading, but not for sharing. And maybe not even then.

- IIRC, "making available" has been ruled sufficient as proof of infringement in court.

- Unless she was actually acting under the knowledge that the downloaders had copies of the works (unlikely, since her share was theoretically open to all), they could probably still nail her for the intent behind the act.

All of this is, of course, irrelevant, since it appears likely she was never the one sharing to begin with. But assuming she had been, this is the state of things. Making works available to random strangers, whether actual infringement occurs, is considered harmful...and, for the most part, this makes sense.

I think that she should send a settlement letter with a hugely overinflated number for the value of her pain and suffering and then when she goes to court remind the judge and jury that she offered to settle for reasonable terms and they opted to bring it to court.

Fuck the RIAA, until they can come up with a reasonable way to detect and bring suit against people for an amount that is at least reasonably close to the amount of damages, they are doing nothing more than exploiting loopholes in a bunch of poorly written laws. If she found a loophole to asshammer them right back then good for her, eye for an eye.

The amazing thing is that the RIAA never really had much evidence on anyone. Nothing that would really stand up in court, imo. Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim? And sharing--wouldn't they have to prove they were actually shared from the defendent's computer and not just merely available for download? And then on top of that--wouldn't they also have to prove that the people that had downloaded the songs didn't actually have a CD of the music and therefore there was no infringement? Seems like the burden of proof wasn't met.

- I believe owning the music would have covered her for downloading, but not for sharing. And maybe not even then.

- IIRC, "making available" has been ruled sufficient as proof of infringement in court.

- Unless she was actually acting under the knowledge that the downloaders had copies of the works (unlikely, since her share was theoretically open to all), they could probably still nail her for the intent behind the act.

All of this is, of course, irrelevant, since it appears likely she was never the one sharing to begin with. But assuming she had been, this is the state of things. Making works available to random strangers, whether actual infringement occurs, is considered harmful...and, for the most part, this makes sense.

Nothing makes sense when she is just as responsible for "making music available" as a network printer. If a network printer can be found uploading and downloading songs you have to wonder about any hope of rationality being applied.

The amazing thing is that the RIAA never really had much evidence on anyone. Nothing that would really stand up in court, imo. Did they prove the defendant didn't own the music? If the defendent showed up with CDs--wouldn't that kill the claim? And sharing--wouldn't they have to prove they were actually shared from the defendent's computer and not just merely available for download? And then on top of that--wouldn't they also have to prove that the people that had downloaded the songs didn't actually have a CD of the music and therefore there was no infringement? Seems like the burden of proof wasn't met.

- I believe owning the music would have covered her for downloading, but not for sharing. And maybe not even then.

- IIRC, "making available" has been ruled sufficient as proof of infringement in court.

- Unless she was actually acting under the knowledge that the downloaders had copies of the works (unlikely, since her share was theoretically open to all), they could probably still nail her for the intent behind the act.

All of this is, of course, irrelevant, since it appears likely she was never the one sharing to begin with. But assuming she had been, this is the state of things. Making works available to random strangers, whether actual infringement occurs, is considered harmful...and, for the most part, this makes sense.

Here's the funny thing that people always miss. If she diddn't own a legal copy then she shouldn't be liable for "making available" . She could only have gotten that illegal copy if it was already made available. So it's only in the case where she already owns a legal copy AND makes available the she should have any liability.

I think the awarding of attorneys fees (already done) is sufficient here. This is just greed on the part of Anderson and her lawyer..

How so? They put her through a ton of stress for no reason whatsoever. They knew all of their cases against everyone they sued were bogus. They had no proof. (And no, an IP address is not proof.)

These groups/companies need to be punished severely so they never think of trying this nonsense again. Not only does it cause undue stress to innocent people but it is an abuse of process and a waste of taxpayers money.

I may feel that not enough people are buying my software (which I wouldn't if my profits were up every year) but it doesn't mean I'm going to pull random IP addresses out of my ass and start suing people.

Here's the funny thing that people always miss. If she diddn't own a legal copy then she shouldn't be liable for "making available" . She could only have gotten that illegal copy if it was already made available. So it's only in the case where she already owns a legal copy AND makes available the she should have any liability.

Using that logic, anyone who uses bittorrent for "questionable activities" is fine as long as they aren't the original seeder. So, for example, if I were to seed a zip file containing Photoshop CS5, a cracker EXE and a text file containing the serial, you're saying I wouldn't be at fault since a) i didn't create the crack, b) i don't actually own a copy of PS CS5, and c) i downloaded this copy from the interwebz.

I think the awarding of attorneys fees (already done) is sufficient here. This is just greed on the part of Anderson and her lawyer.

Regardless of whether or not greed (or vengeance) is her primary motivation, the RIAA's initial suit against her (and continued suits against others) exhibited greed on a far greater level. There is no motivation for the RIAA to either end or correct their legal misdoings until others successfully legally retaliate against them.

d_jedi wrote:

I have to wonder how it all went down with the person she accused.. It seems reasonable to think that he was responsible, and an investigation of Andersons computer should have turned up evidence of hacking.. I wonder why the RIAA didn't pursue this further.

As I understand it, this is the basis of her claim. In other words, she provided evidence (probably more than the amount the RIAA had on her) not only of her own innocence but also of the identity of the likely perpetrator which the RIAA chose to ignore because it would undermine their claims in other law suits that IP address traces (which VZW confirmed) are essentially foolproof. Should the RIAA have acknowledged that users could not be prosecuted solely on IP address traces, they would have dealt a major blow to their other campaigns/cases.

I think the awarding of attorneys fees (already done) is sufficient here. This is just greed on the part of Anderson and her lawyer.

ABSOLUTELY NOT!

This is a completely ridiculous conclusion that you could only have reached by being woefully unfamiliar with the case at hand.

Using the legal system to attempt to extort money from someone who is innocent, which they KNEW, should come with more of a punishment than paying legal fees. They are absolutely guilty of abusing the legal system, and punitive damages are a reasonable request (even from the often unreasonable perspective of the law).

I can't believe people still don't understand this. You're not getting in trouble for download it. That's a legal grey area you could get away with, as long as you're downloading is for noncommercial purpose.

And I can't believe idiots continue to make this claim, parroting utter bullshit they read somewhere on the internets like there's some truth to it. Downloading copyrighted works is illegal. Period. Uploading copyrighted works is illegal. Period. There's nothing gray about it whatsoever. Ask JT or JRT, or read some actual case law before making asinine claims when they don't have a clue.

I think the awarding of attorneys fees (already done) is sufficient here. This is just greed on the part of Anderson and her lawyer.

There was a significant amount of time/effort/stress/etc. put forth by her that hasn't been compensated for. Being the winner in a case like this shouldn't just mean you don't have to pay, it should mean that the people that caused the problem have to cough up a little dough to make it all better.

Similarly: if you contest a running a red light ticket, and win, the state should write you a check for the $200 (or whatever) you would have had to pay. Is it really "winning" to take a day or two off work to sit in a courthouse and walk away with zero?

Maybe they ought to add RICO to the list. That would add treble damages against the lawyers. It would be nice to see lawyers caught in their own net for a change. RICO was for the mobs but has been expanded wherever lawyers want to get a bigger piece of the pie.